extended controversial issue discussion lesson plan...

Extended Controversial Issue Discussion Lesson Plan Template

Lesson Title: War Powers Act and the Constitution Author Name: Adrienne Barry

Contact Information: [email protected] Appropriate for Grade Level(s): 10-12 US History Standard(s)/Applicable CCSS(s): RH 11-12 1.; RH 11-12 9.; RST 11-12 2.; WRST 1.b. Discussion Question(s): Did the creation of the War Powers Act conflicts with Congress’ Constitutional power to declare war?

Engagement Strategy: Structured Academic ControversyStudent Readings (list): Modified “War Powers Act” actual

legislation, The War Powers Resolution: After Thirty-Six Years, The Constitutional Limitations on the President's Powers

1

The pages that follow the Lesson Plan Template include a detailed background paper on the topic for teachers, student readings and reading strategy/questions, source(s), handouts, assignment sheet, self-assessment/reflection and a rubric related to this lesson.

Total Time Needed: [Type text] Lesson Outline: 1.5 70 minute blocks

Time Frame (e.g. 15 minutes)

What is the teacher doing? What are students doing?

10 Mins Description of procedures/ norms Listening

Homework Reading/ taking notes on key points

5 Facilitating writing prompt Students summarize information from readings

5 Assigning groups/ points of view Moving to groups

5 Walking around Students are discussing their discussion points with their partner

10 Overseeing productive discussion Side A is presenting their points/ B is taking notes

5 Side B presents questions and summarizes Side A points

10 Side B presents points/ Side A takes notes

5 Side A presents questions and summarizes Side B points

10 Facilitates whole group discussion Side A students present their major points, Side B present their major points

5 Essay Assignment

Description of Lesson Assessment: Students will write an essay addressing the over-arching question of the discussion.

How will students reflect on the process and their learning? On accompanying work sheets/ essay assignment.


Does the War Powers Resolution of 1973 challenge Congress’ power to declare war?

The War Powers Act states, “The President in every possible instance shall consult with Congress before

introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is

clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until

United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.”1 The

intent of the War Powers Act, which will be henceforth referred to as “WPA 1973”, was to limit the power of the

president in reference to engagement in military intervention. Created in an era that resulted in death as well as

division within the nation, the WPA 1973 was and continues to be a highly controversial piece of legislation within the

United States. Although the War Powers Act was initially created in 1941 as an instrument for America to engage in

World War II, the War Powers Act was changed greatly in the midst of the Vietnam conflict. Due to the highly

controversial nature of the Vietnam conflict, Congress believed the powers of the Executive needed to be checked.

Since the president is cited as the Commander in Chief in the United States Constitution, some debate surrounds WPA

1973. Some believe that the President should be allowed to make military decisions within the jurisdiction of his

fulfillment of the role of Commander in Chief. Others believe that without the consent of Congress to declare war,

which is also required by the constitution, the power of the executive is much greater, thus challenging the balance of

powers among the branches. Both perspectives will be further explored and explained throughout the paper.

Although the Constitution reserves the President of the United States as the Commander in Chief of our armed

forces, the Constitution gave the power to actually declare war to Congress. Congress exhibited great concern regarding

the President having the power to engage in military conflicts without their consent, “The congressional view was that

the framers of the Constitution gave Congress the power to declare war, meaning the ultimate decision whether or not

to enter a war.”2 The framers believed it was important to maintain a balance of powers between the legislative and the

executive regarding the power to declare war. The Tonkin Gulf Resolution challenged this balance as the president felt it

was necessary to engage in military action as a result of an attack in the Tonkin Gulf. The Tonkin Gulf Resolution was

seen by many as a way to circumvent to necessary checks set out by the constitution. “Penetrating beneath the skin,

1 The War Powers Act 1973, H . Res. 542, 93rd Congress, November 7, 1973 S. 3. 2 Grimmett, Richard F. The War Powers Resolution: After Thirty-Six Years. Congressional Research Service. April 22, 2010. Page 11.


however, reveals true intent, and in the case of the Tonkin Gulf Resolution it is clear that Congress intended only that

military action be used to repel an allegedly ‘unprovoked attack’ by a few gun boats. It was certainly no carte blanche to

the Executive to wage large scale war unilaterally and indefinitely.”3 In addition to the Tonkin Gulf Resolution, the WPA

1973 was created to assist in more clearly defining the role of the president regarding engagements abroad. The WPA

1973 stated that, “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed

Forces into [actual or imminent hostilities]… are exercised only pursuant to (1) a declaration of war, (2) specific statutory

authorization, or (3) a national emergency created by attack on the United States, its territories or possessions, or its

armed forces.”4 Although the idea was to more clearly define the role of the Executive, WPA 1973 created a loophole in

which many Presidents will exploit. This loophole is based within the language, a national emergency or imminent

threat. These are the ideas that have allowed the Executive to become engaged abroad more easily than ever before.

While the Congress interpreted its use of the Tonkin Gulf Resolution and the War Powers Act in one way, the Executive

chose to interpret in another way.

There are a few ambiguities that allow the Executive to exploit the guidelines set about in WPA 1973. One

example of an ambiguity is, “The WPR neither defines ‘consult’ nor indicates whom the President is to consult, so

presidents have often purported to ‘consult with Congress’ by simply notifying a few selected members, sometimes only

hours before forces engaged in hostilities.” This oversight directly conflicts with the purpose of the document. If there

are loopholes in which the President may abuse, the resolution is null. This truly raises the constitutionality of the

resolution in its entirety. Does this challenge the basic idea of Congress determining whether or not to engage in war?

The executives have utilized the War Powers Resolution countless times since its enactment to engage in military

conflict without an official declaration of war. One example was after the attacks on the World Trade Center buildings

on September 11, 2001. “President George W. Bush reported to Congress, ‘consistent

with the War Powers Resolution,’ and ‘Senate Joint Resolution 23’ that on October 7, 2001, U.S. Armed Forces ‘began

combat action in Afghanistan against Al Qaida terrorists and their Taliban supporters.’”5 Bush used the nuances in the

3 Goldberg, Arthur "The Constitutional Limitations on the President's Powers," The American University Law review, 22, no. 4 (1973): 680-681. 4 Ibid.

5 Grimmett, Richard F. The War Powers Resolution: After Thirty-Six Years. Congressional Research Service. April 22, 2010. 5.


resolution to get involved abroad without the consent of Congress. It basically allowed Bush to inform Congress that

military action had been initiated, rather than ask Congress for its consent for initiated. The WPA 1973 has created

much confusion regarding the jurisdiction of military action, “deployments without congressional authorization have

sometimes been defended on the grounds that the WPR authorizes the President to use forces in hostilities for sixty

days and does not require their withdrawal before that time (absent a two-house veto that is probably

unconstitutional).”6

The War Powers Act of 1973 has been greatly debated since its establishment. While it was initially created in

order to limit the Executive’s power, it may have actually expanded presidential powers. The Congress strongly believes

that it is absolutely necessary to follow the desires of the founding fathers in regards to balancing the Commander in

Chief’s role and the Legislative Branch. The executive believes it should have an ability to engage in conflicts regardless

of congressional consent if it sees necessary. Nuances in the language used in the War Powers Resolution have in some

ways pleased both parties, but created confusion as well. Does the War Powers Resolution of 1973 challenge the

constitution in regards to Congress’ power to declare war?

6 Ibid

Question:

The creation of the War Powers Act conflicts with Congress’ Constitutional power to declare war.


DOCUMENT 1 1

The Congress’s Constitutional Role in War Powers 2

The framers shared the view that an absolute monarch would be prone to squandering7 his 3

subjects’ lives and money on reckless military adventures. “Absolute monarchs,” John Jay wrote in The 4

Federalist Papers, “will often make war when their nations are to get nothing by it, but for purposes and 5

objects merely personal, such as thirst for military glory, revenge for personal affronts8, ambition, or 6

private compacts to aggrandize9 or support their particular families or partisans.” The best precaution 7

against unilateral10 war-making by the executive was to require a collective decision to go to war. “It will 8

not be in the power of a single man, or a single body of men, to involve us in such distress; for the 9

important power of declaring war is vested in the legislature at large,” James Wilson later explained to 10

the Pennsylvania ratifying convention. Moreover, vesting this power in the whole Congress meant that 11

the popularly-elected House, the body most directly responsive to the voters, had to act and so helped 12

to assure the widest possible political consensus for war. The Senate — originally chosen by state 13

legislatures — could not alone provide this assurance. Since the people could not be asked directly 14

whether the nation should go to war, requiring the assent of the House as well as the Senate was the 15

next best thing. If presidents bent on war could not persuade the Congress, they presumably could not 16

persuade the people either and would therefore lack the consensus required to assume the costs and 17

risks of war. 18

In short, the framers insisted on a collective judgment for war because it was likely that a 19

collective judgment would be superior to an individual judgment, would help assure that the United 20

States would not go to war without a political consensus11, and, by requiring a President to persuade 21

Congress, would effectively make him or her explain why war was necessary to the public who would 22

ultimately bear its cost. These reasons for insisting on a collective judgment for war are still valid today. 23

For the foregoing reasons, the Constitution assigns to the full Congress the power “[t]o declare 24

War [and] grant Letters of Marque and Reprisal.” According to international law in 1789, a state could 25

declare war either by “word or action,” as the influential political theorist John Locke put it. A state 26

publicly announced the state of war “by word” by making a formal declaration of war and delivering it to 27

the enemy. A state initiated a state of war “by action” simply by committing an act of war. 28

7 to spend or use extravagantly or wastefully 8 a personally offensive act or word

9 increase in size or intensity 10 relating to, occurring on, or involving one side only 11 majority of opinion

http://dictionary.reference.com/browse/word

Question:



DOCUMENT 2 1

THE CONSTITUTIONAL LIMITATIONS ON THE PRESIDENT'S POWERS 2 The expansion of presidential power in the conduct of foreign relations threatens to destroy our system of 3

separation of powers in the war power area.' Relying on notions of the scope of their power as Commander in 4

Chief, recent Presidents have unilaterally determined whether this nation should engage in prolonged hostilities 5

abroad. In doing so, the Executive has pursued a hegemonous12

course into the war power domain of Congress 6

which has led to the usurpation13

of Congress' war declaring role. The arguments that allegedly support a broad-7

based presidential prerogative14

to wage war in the absence of a congressional declaration of war, have been 8

rebutted by other commentators. Yet, while the war power issue can be resolved on academic grounds by 9

reference to one document-the Constitution-the prevention of future unauthorized uses of the war power by the 10

President will only come about when Congress forcibly reasserts itself by legislating in this vital area. The proposed 11

War Powers Act' discussed later in this section represents the best effort to date by the Senate to restore our 12

constitutional scheme. "Nothing in the Constitution is plainer," Justice Jackson observed in the Steel Seizure Case, 13

"than that declaration of a war is entrusted only to Congress." Indeed the Constitution is unambiguous15

and 14

unequivocal16

in conferring this most important facet of the war power on the Legislature: "Congress shall have 15

power . . . to declare war."' One does not have to be a jurist or a lawyer to understand these explicit words; nor 16

does one have to be an historian, although the constitutional debates are clear that Congress was entrusted with 17

the power to sanction the use of the sword. In fact, the question of the meaning of the war-making power vis-a-18

vis17

the President, which has caused so much consternation in recent years, was confronted, debated, and 19

answered by the delegates to the Philadelphia convention in August 1787. In agreeing to give Congress the power 20

"to declare war" as opposed "to make war," the delegates made it clear that the President was given only a limited 21

mandate to repel sudden attacks against the United States The President's repelling power is by definition a 22

defensive exercise of force and was conferred solely to provide the President with the power to respond to a 23

surprise attack or to forestall an invasion against this nation until Congress could act. It was by no means a 24

mandate to Presidents to initiate hostilities abroad in the absence of a congressional declaration of war… 25

The constitutional role of Congress, therefore, is not merely to legislate war into existence. It extends far 26 beyond that, permitting Congress to legislate regarding the scope of hostilities to be engaged in and the general 27 course and conduct of war to be pursued… 28

Penetrating beneath the skin, however, reveals true intent, and in the case of the Tonkin Gulf Resolution 29 it is clear that Congress intended only that military action be used to repel an allegedly "unprovoked attack" by a 30 few gun boats. It was certainly no carte blanche to the Executive to wage large scale war unilaterally and 31 indefinitely. 32

12 leadership; predominance. 13 illegal seizure and occupation of a throne. 14 an exclusive right, privilege, etc., exercised by virtue of rank, office, or the like 15 not ambiguous; clear 16 absolute; unqualified; clear 17 in relation to; compared with

Question:



DOCUMENT 3 1

War Powers of President and Congress 2

The heart of the challenge to the constitutionality of the War Powers Resolution rests on 3

differing interpretations by the two branches of the respective war powers of the President and 4

Congress. These differing interpretations, especially the assertions of presidential authority to send 5

forces into hostile situations without a declaration of war or other authorization by Congress, were the 6

reason for the enactment of the Resolution. The congressional view was that the framers of the 7

Constitution gave Congress the power to declare war, meaning the ultimate decision whether or not to 8

enter a war. Most Members of Congress agreed that the President as Commander-in-Chief had power to 9

lead the U.S. forces once the decision to wage war had been made, to defend the nation against an 10

attack and perhaps in some instances to take other action such as rescuing American citizens. But, in this 11

view, he did not have the power to commit armed forces to war. By the early 1970s, the congressional 12

majority view was that the constitutional balance of war powers had swung too far toward the President 13

and needed to be corrected. Opponents argued that Congress always held the power to forbid or 14

terminate U.S. military action by statute or refusal of appropriations, and that without the clear will to 15

act the War Powers Resolution would be ineffective. In his veto message, President Nixon said the 16

Resolution would impose restrictions upon the authority of the President which would be dangerous to 17

the safety of the Nation and “attempt to take away, by a mere legislative act, authorities which the 18

President has properly exercised under the Constitution for almost 200 years.” 19

The War Powers Resolution in section 2(c) recognized the constitutional powers of the President 20

as Commander-in-Chief to introduce forces into hostilities or imminent hostilities as “exercised only 21

pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency 22

created by attack upon the United States, its territories or possessions, or its armed forces.” The 23

executive branch has contended that the President has much broader authority to use forces, including 24

for such purposes as to rescue American citizens abroad, rescue foreign nationals where such action 25

facilitates the rescue of U.S. citizens, protect U.S. Embassies and legations18, suppress civil insurrection19, 26

implement the terms of an armistice or cease-fire involving the United States, and carry out the terms of 27

security commitments contained in treaties. 28

18 a diplomatic minister and staff in a foreign mission. 19 an act or instance of rising in revolt

Question:



DOCUMENT 4 1

The War Powers Act of 1973 2

50 USC S.1541-1548, 1973 3

The War Powers Resolution, generally known as the War Powers Act, was passed by Congress over President 4 Nixon's veto to increase congressional control over the executive branch in foreign policy matters, specifically in 5 regard to military actions short of formally declared war. Its central provision prohibited the President from 6 engaging in military actions for more than sixty days, unless Congress voted approval. 7

The key Section 1541(c) reads: 8

(c) Presidential Executive Power as Commander-in-Chief; Limitation The constitutional powers of the President as 9

Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent 10

involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration 11

of war, (2) specific statutory20

authorization, or (3) a national emergency created by attack upon the United States, 12

its territories or possessions, or its armed forces… 13

Purpose and Policy 14

Sec. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the 15 United States and insure that the collective judgment of both the Congress and the President will apply to the 16 introduction of United States Armed Forces into hostilities, or into situations where imminent

21 involvement in 17

hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such 18 situations. 19

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power 20 to make all laws necessary and proper for carrying into execution, not only its own powers but also all other 21 powers vested by the Constitution in the Government of the United States, or in any department or officer 22 thereof. 23

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces 24 into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the 25 circumstances, are exercised only pursuant to (1) a declaration of war , (2) specific statutory authorization, or (3) a 26 national emergency created by attack upon the United States, its territories or possessions, or its armed forces… 27

28

20 Pertaining to a specific law 21 likely to occur at any moment; impending

Question:



DOCUMENT 5 1

2. Consulting and Reporting Under the WPR (War Powers Resolution) 2

The WPR requires a President “in every possible instance…[to] consult with Congress” before, and to report to it 3 within forty-eight hours after, deploying U.S. armed forces into actual or imminent hostilities, foreign territory, 4 airspace, or waters, or in numbers which “substantially enlarge” combat-equipped U.S. forces already located in a 5 foreign nation. All reports must set forth the circumstances necessitating the introduction of forces, the authority 6 for the introduction, and the “estimated scope and duration of the hostilities or involvement,” but only a report of 7 a deployment into actual or imminent hostilities (a “hostilities report”) starts the sixty-day clock running. Although 8 President Nixon conceded that the consulting and reporting requirements were “constructive measures…[which] 9 would foster [inter-branch cooperation in exercising war powers]…by enhancing the flow of information from the 10 executive branch to the Congress,” presidents have consistently exploited ambiguities

22 in these requirements to 11

render them effectively meaningless. 12

The WPR neither defines “consult” nor indicates whom the President is to consult, so presidents have 13 often purported to “consult with Congress” by simply notifying a few selected members, sometimes only hours 14 before forces engaged in hostilities. Because only “hostilities reports” start the sixty-day clock, all presidents after 15 President Ford have submitted reports that are strategically silent about the subsection under which they are 16 submitted. Moreover, even when these reports have described the circumstances, their identification of the 17 authority for the deployment and their assessment of the scope and duration of hostilities are usually perfunctory 18 boilerplate. Periodic follow-up reports required by the WPR have rarely filled in the details.19

22

doubtfulness or uncertainty of meaning or intention

Question:



Works Cited

1. The War Powers Act 1973, H . Res. 542, 93rd Congress, November 7, 1973 S. 3.

2. Grimmett, Richard F. The War Powers Resolution: After Thirty-Six Years. Congressional Research Service.

April 22, 2010.

3. Goldberg, Arthur. "The Constitutional Limitations on the President's Powers." The American University

Law review. 22. no. 4 (1973): 680-681.

4. Laurie, Clayton D. "War Powers Resolution of 1973." In American Government. ABC-CLIO, 2000-. Accessed

November 25, 2011. http://americangovernment.abc-clio.com/.

5. Young, Marilyn B. “The Vietnam Wars:1945-1990”. New York: HarperCollins, 1991.

Question:



Review the Reading

Determine the most important facts and/or interesting ideas and write them below.

Reading 1:

1) ___________________________________________________________________________

2) ___________________________________________________________________________

Reading 2:

1) ___________________________________________________________________________

2) ___________________________________________________________________________

Reading 3:

1) ___________________________________________________________________________

2) ___________________________________________________________________________

Reading 4:

1) ___________________________________________________________________________

2) ___________________________________________________________________________

Reading 5:

1) ___________________________________________________________________________

2) ___________________________________________________________________________

My Personal Position

In the space below, write down reasons to support your opinion. You may suggest another course of

action than the policy proposed in the question or add your own ideas to address the underlying

problem.

Question:



Learning the Reasons

Reasons to Support the Deliberation Question (Team A)

Reasons to Oppose the Deliberation Question (Team B)

Large Group Discussion: What We Learned

What were the most compelling reasons for each side?

Side A:

Side B:

What were the areas of agreement?

What questions do you still have? Where can you get more information?

Question:



Individual Reflection: What I Learned

Which number best describes your understanding of the focus issue? [circle one]

1 2 3 4 5

NO DEEPER UNDERSTANDING MUCH DEEPER UNDERSTANDING

What new insights did you gain?

What did you do well in the deliberation? What do you need to work on to improve your personal

deliberation skills?

What did someone else in your group do or say that was particularly helpful? Is there anything the group

should work on to improve the group deliberation?

Respond to the following essay prompt in a well-organized 5 paragraph essay.

Did the creation of the War Powers Act conflicts with Congress’ Constitutional power to declare war?

Be sure to consider the following points:

Constitutional powers given to Congress

Presidential powers as Commander in Chief

Obscurities in the language of the act

Historical background

Impact in contemporary history.

Question:



Class Debate : War Powers Resolution SAC

Teacher Name: Ms. Barry

Student Name: ________________________________________

CATEGORY 4 3 2 1

Respect for Other Team All statements, body language, and responses were respectful and were in appropriate language.

Statements and responses were respectful and used appropriate language, but once or twice body language was not.

Most statements and responses were respectful and in appropriate language, but there was one sarcastic remark.

Statements, responses and/or body language were consistently not respectful.

Information All information presented in the debate was clear, accurate and thorough.

Most information presented in the debate was clear, accurate and thorough.

Most information presented in the debate was clear and accurate, but was not usually thorough.

Information had several inaccuracies OR was usually not clear.

Rebuttal All counter-arguments were accurate, relevant and strong.

Most counter-arguments were accurate, relevant, and strong.

Most counter-arguments were accurate and relevant, but several were weak.

Counter-arguments were not accurate and/or relevant

Use of Facts/Statistics Every major point was well supported with several relevant facts, statistics and/or examples.

Every major point was adequately supported with relevant facts, statistics and/or examples.

Every major point was supported with facts, statistics and/or examples, but the relevance of some was questionable.

Every point was not supported.

Understanding of Topic The team clearly understood the topic in-depth and presented their information forcefully and convincingly.

The team clearly undestood the topic in-depth and presented their information with ease.

The team seemed to understand the main points of the topic and presented those with ease.

The team did not show an adequate understanding of the topic.

Question:



Persuasive Essay : War Powers Resolution Essay

Teacher Name: Ms. Barry

Student Name: ________________________________________

CATEGORY 4 - Above Standards 3 - Meets Standards 2 - Approaching Standards 1 - Below Standards Score Attention Grabber The introductory paragraph has a strong hook or

attention grabber that is appropriate for the audience. This could be a strong statement, a relevant quotation, statistic, or question addressed to the reader.

The introductory paragraph has a hook or attention grabber, but it is weak, rambling or inappropriate for the audience.

The author has an interesting introductory paragraph but the connection to the topic is not clear.

The introductory paragraph is not interesting AND is not relevant to the topic.

Position Statement The position statement provides a clear, strong statement of the author\'s position on the topic.

The position statement provides a clear statement of the author\'s position on the topic.

A position statement is present, but does not make the author\'s position clear.

There is no position statement.

Support for Position Includes 3 or more pieces of evidence (facts, statistics, examples, real-life experiences) that support the position statement. The writer anticipates the reader\'s concerns, biases or arguments and has provided at least 1 counter-argument.

Includes 3 or more pieces of evidence (facts, statistics, examples, real-life experiences) that support the position statement.

Includes 2 pieces of evidence (facts, statistics, examples, real-life experiences) that support the position statement.

Includes 1 or fewer pieces of evidence (facts, statistics, examples, real-life experiences).

Sources All sources used for quotes, statistics and facts are credible and cited correctly.

All sources used for quotes, statistics and facts are credible and most are cited correctly.

Most sources used for quotes, statistics and facts are credible and cited correctly.

Many sources are suspect (not credible) AND/OR are not cited correctly.

Grammar & Spelling Author makes no errors in grammar or spelling that distract the reader from the content.

Author makes 1-2 errors in grammar or spelling that distract the reader from the content.

Author makes 3-4 errors in grammar or spelling that distract the reader from the content.

Author makes more than 4 errors in grammar or spelling that distract the reader from the content.

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